spanglesooty/Unenforceable loans

[spanglesooty]

I'm a complete novice to this subject, so my questions may sound naive but having read some of your threads I find it hard to believe that I could get away with not paying some of my loans & credit cards because of some small loophole within the law, which deems them unenforceable. I have an American Express Card & I have fallen into debt after the sale of my business fell thru. I sent the £1 fee for a copy of the agreement and Amex have taken months to finally send the copy to me. The agreement was for a Gold American Express Card. However, the signature on the agreement is not mine !!! & since the agreement American Express have upgraded my card. Is this signed agreement for a Gold Card enforceable ? It is signed in my name but not actually my signature, which I don't understand

[silverfox1961]

AS I see it, if it doesnt have your signature than the whole agreement is non-enforcable. Is the agreement from when you first took out the card?

 

fox

[spanglesooty]

Hi Fox,

 

As far as I can remember the agreement is dated around the time that I first took out the card, which was over 12 years ago. But, the signature is nothing like my own signature & yet I can't see that I've filled the form out and then forgotten to sign it... however, if that is what has happened, then someone has signed it on my behalf !!!

 

What is likely to happen. Would Amex still take action against me to recover this debt ? What exactly does unenforceable mean ? What would be the best way to handle this situation ?

[silverfox1961]

While no-one advocates debt avoidance, where there is an invalid CCA, the debt becomes unenforcable until a valid one turns up. In other words they can't force you to pay although that doesn't stop them trying, even to the point of going to court.

I would be sending them the following letter.

Edit it to suit your situation and don't hand sign it.

just print your name and send it recorded delivery

 

Account In Dispute

 

Ref:

 

Dear Sir/Madam

 

Thank you for your letter of xx/xx/xx, the contents of which have been noted.

 

You have failed to respond to my legal request to supply me a true copy of the original Consumer Credit Agreement for the above account.

 

On **DATE** I made a formal request for a true signed agreement for the alleged account under consumer credit Act 1974 s77/8. A copy of which is enclosed for your perusal and ease of reference.

You have failed to comply with my request, and as such the account entered default on **DATE**.

 

The document that you are obliged to send me is a true copy of the executed agreement that contained all of the prescribed terms, all other required terms and statutory notices and was signed by both your company and myself as defined in section 61(1) of CCA 74 and subsequent Statutory Instruments. If the executed agreement contained any reference to any other document, you are also obliged to send me a copy of that document.In addition a full statement of this account should have been sent to me detailing all debits and credits to the account.

 

Furthermore

 

 

You are aware that the Consumer Credit Act allows 12 working days for a request for a true copy of a credit agreement to be carried out before your client enters into a default situation.

 

This limit has expired.

 

As you are no doubt aware section 77(6) states:

 

If the creditor fails to comply with Subsection (1)

 

(a) He is not entitled , while the default continues, to enforce the agreement.

 

Therefore this account has become unenforceable at law.

 

As you have Failed to comply with a lawful request for a true, signed copy of the said agreement and other relevant documents mentioned in it, Failed to send a full statement of the account and Failed to provide any of the documentation requested.

 

Consequentially any legal action you pursue will be averred as both UNLAWFUL and VEXATIOUS.

 

Furthermore I shall counterclaim that any such action constitutes unlawful harassment.

 

Please note you may also consider this letter as a statutory notice under section 10 of the Data Protection Act to cease processing any data in relation to this account with immediate effect.

 

This means you must remove all information regarding this account from your own internal records and from my records with any credit reference agencies.

 

Should you refuse to comply, you must within 21 days provide me with a detailed breakdown of your reasoning behind continuing to process my data.

 

It is not sufficient to simply state that you have a ‘legal right’; You must outline your reasoning in this matter and state upon which legislation this reasoning depends.

 

Should you not respond within 14 days I expect that this means you agree to remove all such data.

 

Furthermore you should be aware that a creditor is not permitted to take ANY

Action against an account whilst it remains in dispute.

 

The lack of a credit agreement is a very clear dispute and as such the following applies.

 

* You may not demand any payment on the account, nor am I obliged to offer any payment to you.

* You may not add further interest or any charges to the account.

* You may not pass the account to a third party.

* You may not register any information in respect of the account with any credit reference agency.

* You may not issue a default notice related to the account.

 

 

I reserve the right to report your actions to any such regulatory authorities as I see fit.

You have 14 days from receiving this letter to contact me with your intentions to resolve this matter which is now a formal complaint.

 

I would appreciate your due diligence in this matter.

 

I look forward to hearing from you in writing.

 

Yours faithfully

 

 

fox

[maroondevo52]

Hello and Welcome, spanglesooty.

 

Here's some info, regarding the CCA..........

 

A debt becomes unenforceable under the CCA if a creditor does not supply a true copy of the signed credit agreement within 12 working days of it being requested.

 

The debt remains unenforceable for as long as the creditor fails to produce the signed credit agreement – this means if they produce the agreement some months down the line, they are quite within their rights to enforce it. They do not need to take any further action to enforce the debt. A debtor cannot take any action against the creditor for failing to produce the signed credit agreement within the prescribed time, because that is up to the agencies that the offence has been reported to. Any sanctions that may be imposed are at the discretion of these agencies, and it is not a matter that the debtor can take to the civil court.

 

Issuing a court claim for non-compliance of a CCA request in all probability achieves nothing to benefit to the debtor, as a court claim is likely to spur a detailed search which could well end up with them producing a perfectly acceptable original signed agreement in court – which would result in the debtor losing the case, and being made liable for the creditor’s costs.

 

If after requesting a true copy of a signed credit agreement the creditor fails to produce it, it does not mean that the debt does not exist, because at the end of the day the debtor spent the money and therefore they owe it and need to pay it back The debtor may now however be in a good position to make a full and final offer to clear the debt.

 

 

 

I'll move this thread to the Amex Forum.

 

Regards.

 

Scott.

[spanglesooty]

Wowwwwwww !!! THANK YOU FOX now I know why you chose the name FOX ha!

 

I have another naive question... why do you advice not to sign this letter ?

[silverfox1961]

there has been reported (but id o have to say that I've never seen it) that certain unscrupulous companies would electronically lift a signature and print it on to an agreement to make it valid. I'm not saying that your credit card company would do this but better to be safe than sorry.

 

fox

[spanglesooty]

Hi Maroondevo52,

 

Thanks for your comments, your reply has brought me down to earth. This appears to be a very grey area, altho I can't see Amex producing any other original agreement other that the one that they have already sent to me albeit late, which is definitely not my signature.

 

It seems that this situation has provided me with some leverage to negotiate a discounted settlement but nothing more. How much do you think it is possible in % to negotiate off my balance ?

[spanglesooty]

Hi Fox,

 

If that was the case the signature on this agreement would be more similar to mine & I probably would not have noticed that the signature was not actually mine.

 

But, the signature on this agreement is far from similar to my signature, which is why I noticed it in the first place.

[maroondevo52]

Hi,SS.

 

I'm not sure what sort of percentage to offer, whatever you feel comfortable with

 

Having your debt 'wiped' is not necessarily the same thing as we're talking about - the debts are still there, but cannot be enforced if the correct procedures have not been followed.

It's a bit of a stalemate - you could still find defaults on your file, but they can't chase you for the debt without breaking the law.

 

However, the fact that the debt cannot be enforced puts you in a very strong position to negotiate a full and final settlement at a greatly reduced cost; so you could, in effect, wipe out a substantial percentage of what you owe.

 

I'll have a look around for more info for you regarding the dodgy signature.

 

Regards.

 

Scott.